Judges at Odds Over 9th Circuit's Habeas Grant

     (CN) - An order to free or retry a San Diego man on death row puts the 9th Circuit at odds with the Supreme Court and the principles of deference, eight judges warned Tuesday.
     The federal appeals court granted habeas corpus relief to convicted murderer Hector Juan Ayala in August 2012, and then ordered California a year later to retry or release him for his alleged role in the death of three men during a 1985 robbery.
     Ayala had argued at trial and on appeal that the prosecution had illegally kept potential black and Hispanic jurors off of the jury, and that the trial judge had barred him from closed-door deliberations over the state's reasons for doing so. The judge went on to agree with the prosecutor's justifications for striking the jurors, and Ayala was sentenced to death after a jury found him guilty of murder.
     Though the California Supreme Court later found that the trial court had made a mistake in keeping Ayala out of the closed hearing, it said the error was harmless.
     In reversing, a divided three-judge panel of the 9th Circuit found that that the error was in fact prejudicial. The panel reviewed Ayala's claims de novo, or anew, under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and found that the exclusion had been a "federal constitutional error."
     California asked the 9th Circuit to reconsider the case before a full, 11-judge panel, but the appeals court declined to do so in a brief order published on Tuesday. The denial inspired a dissent by Judge Sandra Ikuta, who argued that the panel had improperly reviewed the case de novo. Judges Diarmuid O'Scannlain, Richard Tallman, Jay Bybee, Consuelo Callahan, Carlos Bea, Milan Smith and N. Randy Smith joined in the dissent.
     The opinion notes that the Supreme Court had already rejected such de-novo review in two other cases: Williams v. Cavazos and Richter v. Hickman, which the 9th Circuit decided in 2011 and 2009, respectively. In Richter, the circuit had similarly "brushed aside the deference we owe a state court's adjudication of a petitioner's claim under [the AEDPA], and reviewed a petitioner's claim de novo," Ikuta wrote.
     "The Supreme Court unanimously reversed both of these opinions," she added. "It held that we must defer to a state court denial of a federal claim even if the state court issued only a summary denial, and even if the state court issued a reasoned opinion that did not expressly reject the federal claim."
     The panel majority had defended it de-novo review by saying that the state court had not considered Ayala's claims on their merits but merely brushed them aside as harmless error.
     Such reasoning is, however, "contrary to Supreme Court precedent, the plain language of AEDPA, and the decisions of our sister circuits," the dissent states.
     "In sum, the panel majority's path to de novo review is contrary to the plain language of AEDPA, which precludes granting the writ unless the state court's adjudication of a claim 'resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States,'" Ikuta wrote. "The panel majority hops over AEDPA's 'bar on federal court relitigation of claims already rejected in state proceedings,' with a novel theory that ignores recent Supreme Court jurisprudence and conflicts with our sister circuits. In fact, the panel majority's opinion raises every red flag that should have prompted us to rehear a case en banc. The approach to AEDPA embodied in the panel majority's opinion has already struck out twice at the Supreme Court. I fear that with this case, we are looking at a hat trick. Because we should have corrected these errors ourselves, rather than asking the Supreme Court to weigh in a third time, I respectfully dissent from the denial of rehearing en banc."